EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Innovation studies move beyond static theories and conceptualize a more dynamic theory, the industry life cycle. The industry life cycle shows that all industries follow a similar pattern, where the emergence of a dominant design is the key turning point in when innovation is no longer a competitive constraint. It is this more dynamic theory that the Court and the Commission could use to both nuance and inform the market power assessment and the role of innovation used in abuse of dominance and merger control cases. These theories will not replace the market power assessment but it could support the current assessments of market power. How can the Court and the Commission use the industry life cycle and the concept of a dominant design to inform their current assessments? Before a dominant design has emerged, market power may be short lived as innovation constrains it by letting a new undertaking suddenly taking over. Before the emergence of a dominant design, innovation could be a factor to consider in the market power assessment. However, after a dominant design has emerged, we might need to be more sceptical of the competitive constraint that innovation exerts on the market power of online platforms. After a dominant design has emerged, innovation is less likely to constrain market power due to the stability of the dominant core platform design and the Court and the Commission might be less inclined to consider innovation as a competitive constraint. The industry life cycle and dominant designs might be a first step in the direction of dealing with the dynamic force of innovation in the static analyses of European competition law. Acknowledgements This paper was created within the Modern Bigness project, which has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No 852005). References [1] Anderson, P. and Tushman, M.L. (1990). Technological Discontinuities and Dominant Designs: A Cyclical Model of Technological Change Administrative Science Quarterly. Vol 35 No 4, pp. 604–633. [2] Anderson, P., Tushman, ML. and O’Reilly, C. (1997). Technology Cycles, Innovation Streams and Ambidextrous Organizations. In Anderson, P. and Tushman, M.L. (eds.) Managing Strategic Innovation and Change , New York: Oxford University Press, pp. 3–23. [3] Buganza, T. and Della Valle, E. (2010). The Search Engine Industry. In: Ceri, S. and Brambilla, M. (Eds.). Search Computing . Milan: Springer, pp. 45–72. [4] Commission decision COMP/M.2256 pursuant to Article 6(1)(b) of Council Regulation No 4046/89, Philips/Agilent Health Care Technologies, SG(2000) D/286492 , paras 31–32.

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